Parentage Challenged in Tennessee Same-Sex Divorce Where Child Conceived from In Vitro Fertilization: Potts v. Potts

June 28, 2021 K.O. Herston 0 Comments

Facts: Before same-sex marriage was recognized in Tennessee, Cedra and Starr had two civil union ceremonies. After the second one, they had a child through in vitro fertilization.

They contracted with a fertility clinic in Atlanta to impegnate Cedra with embryos created from her eggs and donated sperm. Both Cedra and Starr signed the contract as a “Prospective Parent.”

Cedra gave birth to twins. The children shared Starr’s last name because Cedra legally changed her last name to Starr’s last name before they were born.

Shortly after the U.S. Supreme Court’s decision legalizing same-sex marriage, Cedra and Starr married.

Two years later, Cedra filed for divorce and claimed no children were born of the marriage. Starr responded by alleging the marriage produced two children. Cedra denied Starr was a legal parent of the children.

Cedra and Starr settled on an agreed parenting plan the trial court approved in a final judgment.

Three months later, Cedra filed a Rule 60.02(3) motion seeking relief from the agreed parenting plan because it was void for lack of subject-matter jurisdiction because Starr was not a parent.

The trial court applied Tennessee’s in vitro fertilization statutes, Tennessee Code Annotated §§ 36-2-401 to -403, to determine that the contract with the fertility clinic created the presumption of Starr’s parentage that Cedra did not rebut. Cedra’s motion was denied.

Cedra appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Subject-matter jurisdiction refers to a court’s power to adjudicate the type of case brought before it. It either exists or it doesn’t.

The doctrine of standing focuses on whether the party may pursue judicial relief.

Tennessee law grants courts the power to award custody, visitation, and associated rights to a parent of the children. Thus, if Starr did not fit the legal definition of a “parent,” then the trial court did not have the jurisdiction to grant parenting rights.

Tennessee Code Annotated § 36-2-403(a)(1)(B) says the fertility clinic must contract with the intended parent or parents transferring full legal rights to the embryos, and to any children that may result, to the intended parent or parents. When that occurs, a child born of the in vitro fertilization procedure “shall be presumed to be the legal child” of the intended parent or parents.

The Court agreed that Starr is a “parent” under Tennessee law, thereby vesting the trial court with the authority to grant her parenting rights to the children:

In addressing the issues raised by the in vitro fertilization procedure, the legislature clearly expressed its intent that contract principles—not biology—would control the question of parentage. Specifically, the parentage inquiry centers on whether the parties contractually agreed to accept “full legal rights and responsibilities for such embryo and any child that may be born as a result of embryo transfer.” … [B]ecause both parties in this case contractually agreed to accept legal responsibility for the embryos and any children born as a result, they are on equal footing as parents of the children.

In years past, parental rights were premised on the parties’ biological relationship to the children and the parties’ marital status at the time of the children’s birth. This was based on society’s past understanding of “family” as the traditional nuclear family—a married heterosexual couple and their children, if any. But, the traditional nuclear family is no longer the typical American family. With increased rates of divorce, nonmarital childbearing, and same-sex marriage—and advances in reproductive technology—our society’s understanding of what constitutes a family has changed, and the legal definition of “parent” has slowly changed with it, as it must.

[W]e hold that [Starr] is a parent of the minor children. Because [Starr] is a parent of the children, she had standing to seek custody and visitation in the divorce proceeding. As a consequence, the trial court had subject-matter jurisdiction to preside over the competing claims and to, inter alia, enter an order approving the agreed-upon permanent parenting plan. Resultantly, the permanent parenting plan is not void for lack of subject-matter jurisdiction.

The Court affirmed the trial court’s denial of Cedra’s Rule 60 motion.

K.O.’s Comment: When denying Cedra’s Rule 60 motion, the trial court said:

[M]odern advancements in reproductive technology have created problems for the courts in applying the rigidity of the black-letter law in determining the actual legal parents of a child. These advances and the changes in social mores have outpaced legislation designed to deal with these unique circumstances. Unfortunately, the lives of minor children cannot be put on hold for the law to catch up and properly deal with these issues.

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The United States Supreme Court’s ruling in Obergefell v. Hodges has recognized the right of same-sex couples to wed and have conferred upon them the same rights of their heterosexual brothers and sisters, to break the hearts of their spouses by divorce. What has not been conferred upon them is to break the hearts of their children by stripping from them a loving parent. In this brave new world, where new human life is often created in a Petri dish and the definition of a parent is now blurred, indistinct, and uncertain, this Court will default to the best interest of the children. Under these facts, it will take a court superior to this Court to strip these children of a parent they have known all their lives and the emotional and financial support she provides.

Over six years ago, the Tennessee Attorney General informed the legislature that many Tennessee laws are unconstitutional because they use gender-specific words like husband, wife, father, mother, man, woman, etc.

What action has the legislature taken in the past five years to modernize what it knows are outdated, unconstitutional laws that affect Tennessee children?


Not. One. Thing.

Children have suffered unnecessarily, and more children will suffer, until our elected officials fix the problems they know exist but choose to ignore.

Potts v. Potts (Tennessee Court of Appeals, Middle Section, June 2, 2021).

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Parentage Challenged in Tennessee Same-Sex Divorce Where Child Conceived from In Vitro Fertilization: Potts v. Potts was last modified: October 25th, 2021 by K.O. Herston

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